Aprosecutor’s decision-making on a criminal case ends only when the case ends. Prosecutorial decision-making is ongoing throughout the life of a criminal prosecution. It must be fluid and responsive to ever-changing circumstances from the start of a prosecution to its conclusion.
It is an everyday occurrence for a responsible and ethical prosecutor to appropriately agree to something at later stages of a prosecution that the same prosecutor would not, also appropriately, agree to at an earlier date. “No” means only “no for the moment based on current information and circumstances.”
Because ongoing flexibility is essential to proper prosecutorial decision-making, it is concerning to hear a senior prosecutor say “my mind was made up,” suggesting a decision was final, would not be revisited and was not open to ongoing debate. To hear the top prosecutor, attorney general Jody Wilson-Raybould, as she then was, say those very words was particularly concerning.
A prosecutor must always, limited only by requirements of confidentiality, be prepared to justify their actions to others through active debate.
The law is clear that an attorney general is independent and cannot be directed by anyone, even her boss, with respect to any criminal case. Questioning, trying to persuade and debating with the AG, however, is in my respectful view, not only acceptable but desirable.
Sound decisions should be capable of being rationally justified and on an ongoing basis. That is what lawyers do. They are expected to constantly explain and justify their decisions. It is commonplace and indeed desirable that those elected to govern, with the support of their staff, are constantly questioning important decisions made by all members of the government. No minister (even an AG in respect of a particular prosecution) should feel importuned as a result of having any decision questioned, even aggressively and repeatedly so.
It is also certainly open to the prime minister to seek to replace any one of his ministers who refuses to continue to engage with him or his staff in an ongoing, responsive discussion or even argument and debate with respect to her decision on any matter along the way.
If a minister refuses to engage, I suggest that minister ought to be replaced. If, after fulsome debate, the first minister ultimately disagrees with a key decision made, it must be open to him to replace even an attorney general. The buck stops with him. The limitation on him is only that he cannot direct either the first or the replacement AG. That is the rule of law.
My limited understanding is that a deferred-prosecution agreement (also known as a remediation agreement) makes it possible for penalties, and severe ones, to be imposed on a corporate entity for its wrongdoing as an alternative to a criminal prosecution. Without the need of a costly trial, upon agreement of the parties, conditions, including penalties, may be placed on the corporate entity. If the company does not comply with the conditions and penalty, the prosecution in criminal court could then proceed.
A key difference between a DPA and a guilty plea or conviction after a trial is that no “criminal conviction” would be entered. A DPA provides an option that enables the principles of sentencing (rehabilitation, deterrence, punishment) to be met short of wiping out the company and simultaneously causing significant collateral damage to many innocent employees and shareholders of the company. Agreeing to a DPA is far cry from “letting the company off.”
The AG is the top Crown lawyer and as such should be capable of constantly defending while always reconsidering every single legal decision she makes, big or small. That is the very essence of her job.
If any minister of the Crown is guided by the principle that her decisions are final and not open to reconsideration or debate, I respectfully suggest that she is ill advised and not, arguably, up for the job. If she is guided by the principle that anyone who pointedly challenges her decision-making, will live to regret it, I suggest that Canadians have a deeper problem that needs to be addressed firmly and quickly.
Roxanne P. Helme, QC, is a lawyer in Victoria.
